ACCO BRANDS USA LLC LIMITED LIABILITY COMPANY AGREEMENT
Exhibit 3.6
ACCO BRANDS USA LLC
LIMITED LIABILITY COMPANY AGREEMENT
LIMITED LIABILITY COMPANY AGREEMENT
The undersigned is executing this Limited Liability Company Agreement (“Agreement”) for the
purpose of forming and setting forth the governance provisions regarding a limited liability
company (the “Company”) pursuant to the provisions of the Delaware Limited Liability Company Act
(the “Act”) and does hereby certify and agree as follows:
ARTICLE I
1.1 Definitions. In addition to terms otherwise defined herein, the following terms used
herein shall have the following meanings:
“Board” has the meaning set forth in Section 4.1.
“Common Shares” means the equity securities of the Company authorized for issuance
pursuant to Section 3.1 and having the designations, preferences and relative, participating,
optional and other special rights, powers and duties specified with respect to Common Shares in
this Agreement.
“Director” means a member of the Board elected as provided in Section 4.2(a).
“Initial Shareholder” means ACCO World Corporation, a Delaware corporation.
“Officer” means any person elected as an officer of the Company as provided in Section
4.4(b) but such term does not include any person who has ceased to be an officer of the Company.
“Percentage Interest” means, with respect to any Shareholder as of any date, the ratio
(expressed as a percentage) of the aggregate number of Common Shares held by such Shareholder on
such date to the aggregate number of Common Shares outstanding on such date. The combined
Percentage Interests of all Shareholders shall at all times equal 100 percent. The Percentage
Interest of the Initial Shareholder shall initially be 100 percent.
“Shareholders” means the Initial Shareholder and all other persons or entities
admitted as additional or substituted Shareholders pursuant to this Agreement, so long as they
remain Shareholders. Reference to a “Shareholder” means any one of the Shareholders. Shareholders
shall constitute “members” within the meaning of the Act.
Words used herein, regardless of the number and gender used, shall be deemed and construed to
include any other number, singular or plural, and any other gender, masculine, feminine, or neuter,
as the context requires. As used herein, unless the context clearly requires otherwise, the words
“hereof’, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a
whole and not to any particular provisions hereof.
ARTICLE II
2.1 Name; Formation. The Company was formed effective as of 1:58 p.m. on August 2, 2005 as a
result of the conversion of ACCO Brands, Inc., a Delaware corporation (“ACCO Brands”), into a
Delaware limited liability company which was effected by (a) the execution and filing by ACCO
Brands of a Certificate of Conversion pursuant to Section 18-214 of the Limited Liability Company
Act of the State of Delaware and Section 266 of the General Corporation Law of the State of
Delaware with the Secretary of State of the State of Delaware, and (b) the execution and filing by
the Initial Shareholder of a Certificate of Formation of the Company with the Secretary of State of
the State of Delaware. The name of the Company shall be ACCO Brands USA LLC, or such other name as
the Shareholders may from time to time hereafter designate.
2.2 Purpose and Powers. (a) The purpose of the Company shall be to engage in any lawful
business that may be engaged in by a limited liability company organized under the Act.
(b) The Company shall possess and may exercise all of the powers and privileges granted by the
Act or by any other law or by this Agreement, together with any powers incidental thereto, so far
as such powers and privileges are necessary or convenient to the conduct, promotion or attainment
of the business purposes or activities of the Company.
2.3 Principal Place of Business. (a) The principal office of the Company, and such additional
offices as the Board may determine to establish, shall be located at such place or places inside or
outside the State of Delaware as the Board may designate from time to time.
(b) The registered office of the Company in the State of Delaware is located at Corporation
Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000. The registered agent
of the Company for service of process at such address is Corporation Service Company.
2.4 Term. The term of the Company shall commence at 1:58 p.m. on August 2, 2005 and shall
continue until terminated in accordance with the terms of this Agreement.
2.5 Liability to Third Parties. The debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be solely the debts,
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obligations and liabilities of the Company, and no Shareholder shall be obligated personally
for any such debt, obligation or liability of the Company solely by reason of being a Shareholder
of the Company.
ARTICLE III
3.1 Common Shares. (a) A total of 1,000 Common Shares are hereby authorized for issuance, of
which 1,000 Common Shares have been issued to the Initial Shareholder as a result of the conversion
of ACCO Brands into the Company as described in Section 5.1. The designations, preferences and
relative, participating, optional and other special rights, powers and duties relating to the
Common Shares authorized for issuance pursuant to this Section 3.1(a) are set forth in this Section
3.1.
(b) The holders of Common Shares (i) shall share in each item of Company income, gain, loss,
deduction and credit as provided in Section 5.5, (ii) shall be entitled on a pro rata basis to such
dividends, if any, as shall be declared thereon from time to time by the Board, (iii) except to the
extent otherwise provided in Section 8.2, upon liquidation or dissolution of the Company shall be
entitled on a pro rata basis to all remaining assets after satisfaction of the Company’s
liabilities to creditors and (iv) shall be entitled to one vote per Common Share on matters
submitted to a vote or consent of Shareholders. Each Common Share shall be identical in all
respects with each other Common Share.
(c) Common Shares issued for such consideration as the Board determines to be appropriate,
including Common Shares issued as set forth in Section 3.1(a) hereof, shall be deemed to be fully
paid and, except to the extent specified in Section 18-607(b) of the Act, nonassessable.
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ARTICLE IV
4.1 Management of Company. As provided in this Agreement, all management powers over the
business and affairs of the Company shall be vested in a Board of Directors (the “Board”) and,
subject to the direction of the Board, the Officers, who shall collectively constitute “managers”
of the Company within the meaning of the Act. No Shareholder, by virtue of having the status of a
Shareholder, shall have any management power over the business and affairs of the Company or actual
or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company.
Except as specifically provided in this Agreement, the authority and functions of the Board, on the
one hand, and of the Officers, on the other, shall be identical to the authority and functions of
the board of directors and officers, respectively, of a corporation organized under the Delaware
General Corporation Law. Thus, except as otherwise specifically provided in this Agreement, the
business and affairs of the Company shall be managed under the direction of the Board, and the
day-to-day activities of the Company shall be conducted on the Company’s behalf by the Officers,
who shall be agents of the Company. In addition to the powers that now or hereafter can be granted
to managers under the Act and to all other powers granted under any other provision of this
Agreement, the Board (subject to Section 4.2) and the Officers (subject to Section 4.4 and the
direction of the Board) shall have full power and authority to do all legal things on such terms as
they, in their sole discretion, may deem necessary or appropriate to conduct, or cause to be
conducted, the business and affairs of the Company, including, without limitation:
(a) the making of any expenditures, the lending or borrowing of money, the assumption or
guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of
evidences of indebtedness and the incurring of any other obligations;
(b) the making of tax, regulatory or other filings, and the rendering of periodic or other
reports to governmental or other agencies having jurisdiction over the business or assets of the
Company;
(c) the use of the assets of the Company (including cash on hand) for any purpose consistent
with the terms of this Agreement and the payment of obligations by the Company;
(d) the negotiation, execution and performance of any contracts, conveyances or other
instruments;
(e) the distribution of cash by the Company;
(f) the selection, engagement and dismissal of Officers, employees and agents, outside
attorneys, accountants, consultants and contractors and the determination of their compensation and
other terms of employment or hiring;
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(g) the maintenance of insurance for the benefit of the Company as is deemed necessary or
appropriate;
(h) the acquisition or disposition of assets;
(i) the formation of, contribution of property to, or acquisition of an interest in, any
entity;
(j) the control of any matters affecting the rights and obligations of the Company, including
the commencement, prosecution and defense of actions at law or in equity and otherwise engaging in
the conduct of litigation and the incurring of legal expense and the settlement of claims and
litigation; and
(k) the appointment of the Company’s independent auditors.
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be so removed, a new Director or Directors may be elected by the Shareholders at the time of
such removal; any vacancy resulting from such removal, if not so filled by such election by the
Shareholders, may be filled as provided in Section 4.2(a).
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all persons participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
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(i) any act in contravention of this Agreement;
(ii) cause or permit the Company to merge or consolidate with or into any
corporation, business trust or association, real estate investment trust, limited
liability company, partnership (whether general or limited), common law trust,
unincorporated business or other entity;
(iii) change the Company’s name or amend or restate the Company’s Certificate
of Formation or this Agreement;
(iv) cause or permit the issuance of any equity securities of the Company
other than Common Shares in accordance with Section 5.1(a) hereof;
(v) possess any property owned by the Company, or assign rights in any
Company property, for other than a Company purpose, or
(vi) cause or permit the Company to distribute, sell or otherwise dispose of
substantially all of the property of the Company.
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not less than ten (10) nor more than sixty (60) days before the date fixed for the meeting, by
or at the direction of the body or person calling the meeting to each Shareholder entitled to vote
at such meeting.
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4.4 Officers. (a) In General. Unless otherwise provided by resolution of the Board,
the Officers shall have the titles, powers, authority and duties described below in this Section
4.4.
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President and, when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the President.
4.5 Duties of Officers and Directors. Except as otherwise specifically provided in this
Agreement, the duties and obligations owed to the Company and to the Shareholders by the Officers
of the Company and by members of the Board, and any such duties that may be owed by any Shareholder
or by any affiliate of any Shareholder, shall be the same as the respective duties and obligations
owed to a corporation organized under the Delaware General Corporation Law by its officers and
directors and any such duties that may be owed to such corporation by any similarly situated
Shareholder or affiliate thereof, respectively.
ARTICLE V
5.1 Capital Contributions. (a) Pursuant to the Certificate of Conversion, which was
effective at 1:58 p.m., on August 2, 2005 and whereby ACCO Brands was converted into the Company in
accordance with Section 18-214 of the Limited Liability Company Act of the State of Delaware and
Section 266 of the General Corporation Law of the State of Delaware, all of the outstanding shares
of common stock
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of ACCO Brands (all of which were owned beneficially and of record by the Initial Shareholder)
were converted into 1,000 Common Shares representing all of the outstanding membership interest in
the Company. Such conversion of all of the outstanding shares of common stock of ACCO Brands into
1,000 Common Shares shall be deemed to be the capital contribution of the Initial Shareholder.
(b) The amount of money and fair market value (as of the date of contribution) of any property
(other than money) contributed to the Company by a Shareholder (including for this purpose the
deemed contribution by the Initial Shareholder resulting from the conversion of its ownership
interest in all of the outstanding shares of common stock of ACCO Brands into 1,000 Common Shares)
in respect of the issuance of Common Shares to such Shareholder shall constitute a “Capital
Contribution” of such Shareholder. Any reference in this Agreement to the Capital Contribution of a
Shareholder shall include a Capital Contribution of such Shareholder’s predecessors in interest.
(c) No Shareholder shall be required to make any additional Capital Contribution to the
Company and, without the vote or written consent of all Shareholders, no Shareholder shall make any
additional Capital Contribution to the Company.
5.2 Capital Accounts. Each Shareholder’s capital account shall be maintained on the books of
the Company and the balance of each Shareholder’s capital account shall be equal to such
Shareholder’s initial Capital Contribution pursuant to Section 5.1(a) above, and shall be (a)
increased by (i) the aggregate amount of such Shareholder’s additional Capital Contributions to the
Company, and (ii) items of income and gain allocated to such Shareholder, and (b) shall be
decreased by (i) distributions to such Shareholder from the Company, and (ii) items of loss or
deduction allocated to such Shareholder.
5.3 No Withdrawal of Capital. Except as otherwise provided in this Agreement, no Shareholder
shall demand or receive a return of its Capital Contributions. Under circumstances requiring a
return of any Capital Contributions, no Shareholder shall have the right to receive property other
than cash except as may be specifically provided in this Agreement.
5.4 No Interest on Capital. No Shareholder shall receive any interest or draw with respect to
its Capital Contributions or its capital account, except as otherwise provided in this Agreement.
5.5 Allocations. All items of income, gain, loss, deduction and credit shall be allocated to
the Shareholders in accordance with their Percentage Interests.
5.6 Withholding. Notwithstanding any other provision of this Agreement, the Company shall
comply with any withholding requirements under any law and shall remit amounts withheld to and file
required forms with applicable taxing authorities. To the extent that the Company is required to
withhold and pay over any
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amounts to any taxing authority with respect to distributions or allocations to any
Shareholder, the amount withheld shall be treated as a distribution of cash to such Shareholder in
the amount of such withholding. In the event of any claimed over-withholding, Shareholders shall be
limited to an action against the applicable taxing authority. If an amount required to be withheld
was not withheld from an actual distribution, the Company may reduce subsequent distributions by
the amount of such required withholding. Each Shareholder agrees to furnish the Company such forms
or other documentation as are necessary to assist the Company in determining the extent of, and in
fulfilling, its withholding obligations.
ARTICLE VI
6.1 Restriction on Transfers. No Shareholder may sell, assign, pledge or otherwise transfer or
encumber (collectively “transfer”) all or any part of its Common Shares or other interest in the
Company, and no transferee of all or any part of the interest of a Shareholder shall be admitted as
a substituted Shareholder, without, in either event, having obtained the prior written consent of
all other Shareholders, except that the Initial Shareholder may transfer, and no such consent shall
be required in connection with the transfer by the Initial Shareholder of, all of the Common Shares
to any direct or indirect wholly-owned subsidiary of the Initial Shareholder, or by any such
subsidiary of the Initial Shareholder to another direct or indirect wholly-owned subsidiary of the
Initial Shareholder. Any purported transfer in violation of this Article VI shall be null and void
and shall not be recognized by the Company.
ARTICLE VII
7.1 Books of Account. The Company shall keep all records necessary or convenient to record the
Company’s business and affairs and sufficient to record the determination and allocation of all
items of income, gain, loss, deduction and credit and distributions and other amounts as may be
provided for herein.
7.2 Access to Books. The books and records of the Company shall be available to each
Shareholder or its representatives for inspection and audit upon reasonable notice during normal
business hours at the principal office of the Company. The Company shall cause its auditors to
cooperate in such inspection and audit and to provide any of their work papers requested in
connection therewith.
7.3 Fiscal Year. The fiscal year of the Company shall start on January 1 in each year.
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ARTICLE VIII
8.1 Dissolution. The Company shall be dissolved and its affairs shall be wound up upon the
first to occur of any of the following:
(a) the affirmative vote or unanimous written consent of the Shareholders; and
(b) the entry of a decree of judicial dissolution under Section 18-802 of the Act.
8.2 Liquidation and Termination. On dissolution of the Company, the Shareholders shall appoint
one or more liquidators of the Company. The liquidators shall forthwith commence the winding up of
the Company’s business and the liquidation of its property. All proceeds from the sale or
disposition of the property of the Company shall, to the maximum extent permitted by law, be
applied as follows:
(a) all of the Company’s debts and liabilities shall be paid and discharged in the order of
priority provided by law; and
(b) the balance shall be distributed to the Shareholders in accordance with their Percentage
Interests.
The liquidator(s) may make distributions of the Company’s assets in kind. The choice of which, if
any, Company assets are to be distributed in kind shall be within the sole discretion of the
liquidator(s) and shall be binding upon all Shareholders. Unless otherwise agreed by the
Shareholders, distributions of property in kind shall be shared by all the Shareholders in
accordance with their Percentage Interests. The costs of liquidation shall be borne as a Company
expense.
8.3 Cancellation of Filings. Upon completion of the distribution of Company assets as provided
in Section 8.2 hereof, the Company is terminated, and the Board shall cause to be filed a
certificate of cancellation with the Secretary of State of the State of Delaware and shall take
such other actions as may be necessary to terminate the Company.
ARTICLE IX
9.1 Amendments. This Agreement may be amended only upon the written consent of all
Shareholders.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Delaware without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of
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Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
9.3 Tax Matters. It is the intention of the Shareholders that the Company shall not be taxed
as a corporation for federal, state and local income tax purposes, but instead shall be taxed as a
partnership (if it has more than one Shareholder) or as a non-entity (if it has only one
Shareholder) for federal, state and local income tax purposes. The Shareholders agree to take all
reasonable actions, including the amendment of this Agreement and the execution of other documents,
as may reasonably be required in order for the Company to qualify for and receive such treatment
for federal, state and local income tax purposes.
9.4 Waiver of Notice. Whenever notice is required by this Agreement, or is otherwise provided
by law, a written waiver thereof, signed by the person entitled to notice, shall be deemed
equivalent to notice, whether before or after the time required for such notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except when a person
attends a meeting of Shareholders for the express purpose of objecting, at the beginning of the
meeting, that the meeting is not lawfully called or convened. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of Shareholders need be specified in any
written waiver of notice.
9.5 Severability. Except as otherwise provided in the succeeding sentence, every provision of
this Agreement is intended to be severable, and, if any term or provision of this Agreement is
illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the
validity or legality of the remainder of this Agreement. The preceding sentence of this Section
shall be of no force or effect if the consequence of enforcing the remainder of this Agreement
without such illegal or invalid term or provision would be to cause any Shareholder to lose the
benefit of its economic bargain.
9.6 No Set-Off. To the extent permitted by law, the Company shall not be entitled to offset
against any payments required to be made by it hereunder any claims which it may have against any
Shareholder, and hereby waives any set-off rights which it may have in respect of any such
Shareholder.
ACCO WORLD CORPORATION | ||||
By: | /s/ Xxxx X. Xxxxxxx | |||
Name: Xxxx X. Xxxxxxx | ||||
Title: Executive Vice President-Finance and Administration |
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